Make AG an election watchdog

By Jerry H. Goldfeder

Published 7:25 pm, Sunday, April 28, 2013

After a whirlwind of arrests, Albany is brimming with anti-corruption proposals. They include public financing of elections, beefed-up regulatory measures and stricter rules for political parties. When the smoke clears, the most important measure of success will be if and how the enforcement of election and campaign finance laws are reformed.

Among the variety of suggestions, the best hope for meaningful reform is to give the attorney general full jurisdiction to investigate and prosecute civil violations and criminal conduct. The governor has the power to make this happen.

The last time New York undertook a major change in how we enforce election laws was in the mid-1970s. On the heels of the Watergate scandal, the state Legislature adopted a bipartisan Board of Elections, with full investigatory authority. Then-Attorney General Louis Lefkowitz, in whose office such powers had reposed for more than 50 years, was happy to be relieved of having to investigate his fellow politicians and fully supported the reform.

Modeled on the Federal Election Commission and consistent with our state constitution, it is run by two Republican and two Democratic Commissioners. Like the federal model, referrals are made for criminal prosecution, in this case to the local district attorneys.

The board has obviously failed. Just look at the last decade: from 2002 through 2011, 1016 complaints were filed with the board.

In only 31 cases did the board conduct full investigations — a mere 3 percent. Only six times — a paltry 0.5 percent — did it refer matters to a district attorney. No doubt some of the complaints were frivolous or politically motivated, and the board had only one investigator for much of this time.

But it is not just an issue of insufficient resources. A review of the board's investigations reveals circumstances that warranted review by a district attorney, but none was requested: tampering with nominating petitions and affidavit ballots by election officials; improper campaign expenditures; cash payments; illegal voting. It is unclear as to why referrals were not made.

The attorney general's office, on the other hand, already has an infrastructure in place to enforce the law.

Dedicated lawyers and a phalanx of investigators, experienced in a host of other civil and criminal areas, could hit the ground running.

Sure, the attorney general is an elected official, but since the late 1970s the office has developed a nonpartisan professionalism. Indeed, the office has aggressively investigated elected officials of both parties. There is no need to create a new bureaucracy, and it makes no sense to house a special unit within the current board's office.

In addition to its historical role and unquestioned professionalism, there is also a statutory rationale to assign this job to the attorney general. The Executive Law provides that the attorney general can serve as a "special district attorney" for election crimes. All that is required is for the governor to appoint him — and this power is wholly within the governor's authority and discretion.

With one stroke of the pen the governor can make the Attorney General New York's election watchdog. He should just do it.

Jerry H. Goldfeder is a special counsel at Stroock & Stroock & Lavan LLP, concentrating in election and campaign finance compliance. He previously served as Attorney General Andrew M. Cuomo's special counsel for public integrity.